Excerpt:.....under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- in my judgment, prosecution has failed to establish that mussammatharbans kaur was compelled by force to go fromplace to place. 13. as stated above, mussammat harbans kaur stated that the treatment of her mother-in-lawtowards her was not happy. mussammat harbans kaur thenstated that during the journeys that she performed between june, 1951. and january, 1952, shedid not complain to anybody..........p.c. are copies of birth certificates in respect of mussammat swam kaur and mussammat harbans kaur. mussammat swam kaur, who was older than mussammat harbans kaur, died on 4-11-1933. exhibit p.d. is the death certificate in respect of the death of mussammat swam kaur. that being so, it is plain that the birth certificate, exhibit p. c., relates to the birth of mussammat harbans kaur. doctor jai dev c. w. 1 gave evidence that mussammat harbans kaur was not more than 16 1/2 years of age.19. in -- 'jangli mian v. emperor', air 1934 pat 170 (a), saunders j. (agarwaia j. concurring) said :'kidnapping and abduction are two distinct offences though they are punishable under the same section. the result of there being only one charge framed in the alternative in respect of both offences is.....

Judgment:

Harnam Singh, J.

1. By this order I dispose of Criminal Appeals Nos. 416 and 426 of 1952.

2. Gurdas and Maru have been convicted under Section 366, Penal Code, Gurdas has been sentenced to suffer rigorous imprisonment for five years, while Maru has been sentenced to suffer rigorous imprisonment for two years.

3. Gurdas is the appellant in Criminal Appeal No. 418 of 1952, while Maru is the appellant in Criminal Appeal No. 426 of 1952.

4. Briefly summarised, the facts are these. In June 1951, 'Musammat' Harbans Kaur P. W. I disappeared from village Bhorle at night. On that day Gurdas was not to be found in that village. Gurdas returned to the village a month later when Govind P. W. 4 and Sundar P. W. 5 convened a 'panchayat'. In that 'panchayat' Gurdas admitted that he had sold 'Musammat' Harbans Kaur at Ban Majra for rupees 700/-. Gurdas promised to restore 'Musammat' Harbans Kaur but did not keep up that promise. Gobind P. W. 4 and Natha P. W. 13 went to Ban Majra in search of 'Musammat' Harbans. Kaur but 'Musammat' Harbans Kaur was not to be found in that village. Natha P. W. 18 is married to a sister of Sundar p. W. 5. Gobind P. W. 4 son of Sundar P. W. 6 is the husband of 'Musammat' Harbans Kaur.

5. On 15-1-1952, Maru appellant, 'Musammat' Harbans Kaur p. W. 1 and one Dev were arrested at Ambala under Section 109, Criminal P. C. For four days 'Musammat' Harbans Kaur was not able to furnish security. On the 4th day of her arrest Arjan Singh P. W. 20 stood surety for 'Mt.' Harbans Kaur when she was released on bail and taken by Maru to Ban Majra. On 29-1-1952, 'Musammat' Harbans Kaur P. W. 1, Maru appellant and Surjan left village Ban Majra for Nangal. On 29-1-1952, at about 8.30 p.m. 'Musammat' Harbans Kaur was found at Kurali railway station with Maru appellant and Surjan by Sub-Inspector Shri Jagdish Datt P.W. 28 and Raja Ram P. W. 16. On seeing Raja Ram 'Musammat' Harbans Kaur ran towards him praying for help. Sub-Inspector Jagdish Datt recorded the statement of 'Musammat' Harbans Kaur and arrested Mam and Surjan accused. Sub-Inspector Jagdish Datt arrested Gurdas and 'Musammat' Paro on 2-2-1952. Rakha was arrested on 10-2-1952. Dial was arrested on 11-2-1952. Daswandhi was arrested on 12-2-1952, while Chand was arrested on 18-24952.

7. Gurdas was charged that he in June 1951, at Bhorle, abducted 'Musammat' Harbans Kaur with intention that she may be compelled to marry against her will or in order that she may be forced to illicit intercourse.

8. Maru was charged that he in June, 1951, at Bahlopur Bridge abducted 'Musammat' Harbans Kaur with intention that she may be compelled to marry against her will or in order that she may be forced to illicit intercourse. Maru was also charged with having committed rape on 'Musammat' Harbans Kaur at village Ban Majra in June 1951. Maru has been acquitted under Section 376, Penal Code.

9. 'Musammat' Harbans Kaur gave evidence that she had gone to give fodder to the buffalo at night when 'Musammat' Paro toll her that she was wanted by Gurdas. 'Musammat' Harbans Kaur declined to accompany 'Musammat' Paro at that hour of the night, but ultimately she agreed to accompany her. Reaching the house of Gurdas she found him with 'Kirpan' in hand. Gurdas threatened 'Musammat' Harbans Kaur when she dressed herself in male attive and accompanied him to Bahlolpur Bridge. Maru appellant and Rakha were waiting at Bahlolpur Bridge. Reaching Bahlolpur at about sunrise 'Musammat' Harbans Kaur put off her male attire. Labh Singh P. W. 9 and Amar Singh P. W. 10 met them near the lorry-stand at Bahlolpur. On enquiry Gurdas told Labh Sltigh P. W. 9 and Amar Singh P. W. 10 that the woman with them was his wife's sister. Labh Singh and Amar Singh are collaterals of Sundar p. W. 5 in the 7th or 8th degree. In village Bhorle the house of Labh Singh is separated by three houses from the house of Sundar. Amar Singh P. W. 10 also lives close to the house of Sundar p. W. 5. From Bahlolpur Gurdas, Maru, Rakha and 'Musammat' Harbans Kaur went to Rupar, where they met Telu P. W. 17 near the bus-stand. On enquiry Maru told Telu P. W. 17 that 'Musammat' Harbans Kaur was the wife of Rakha. Natha P. W. 18 who is married to a sister of Sundar P. W. 5 is brother of Telu P. W. 17.

10. In deciding criminal case; No. 42/2 of 1952 the Court has found the evidence given toy Labh Singh, Amar Singh and Telu to be false and fabricated 'inter alia' for the reason that the names of Labh Singh, Amar Singh and Telu do not appear in the first information report. Exhibit P-G. which was made on 24-12-1952. Labh Sinsh, Amar Singh and Telu gave evidence that in June. 1951, when they learnt about the disappearance of Mussammat Harbans Kaur they told Sundar P. W. 5 about what they had seen. In deciding the case the Court said :

'There being no doubt about the fact that Harbans Kaur was taken away by Gurdas, the question whether Gurdas employed force or fraud in the process is not of much consequence. If it was not compulsive force, it must have been some beguiling' persuasion, some offer of escape from the atrocities of an exacting mother-in-law, some poisoning against a nincompoop husband junior to her in age, or perhaps, some promise for a more comfortable life. The pressure, whether of force or of temptation, must have been sufficiently irresistible for the young girl to take the plunge which she did.'

11. Section 362, Penal Code requires two essentials :

(1) forcible compulsion, or inducement by deceitful means; and

(2) the object of such compulsion or inducement must be the gotes of a person from any place.

12. In the present case the evidence given byMussamat Harbans Kaur was that she was compelled by force to go from place to place. Thatbeing the prosecution case, the question that arisesfor decision is whether Mussamat Harbans Kaurwas compelled by force to go from village Bhorleto Bahlolpur Bridge and from there compelled byforce to go to other places. In my judgment, prosecution has failed to establish that MussammatHarbans Kaur was compelled by force to go fromplace to place.

13. As stated above, Mussammat Harbans Kaur stated that the treatment of her mother-in-lawtowards her was not happy. In June, 1951, whenshe left Bhorle she passed by village Majri dressedin male attire. Mussammat Harbans Kaur thenstated that during the journeys that she performed between June, 1951. and January, 1952, shedid not complain to anybody that she was anabducted person.

14. On 9-8-1951, Mussammat Harbars Kaurswore an affidavit at Ambala. That affidavit wasscribed by Asa Ram petition-writer. Exhibit P.Y./lis the true copy of the entry in the register ofAsa Bam D. W. 28. That affidavit appears to havebeen taken by the police from Maru at Kuralirailway station but has not been produced. Fromthe copy, Exhibit P.Y./1, it appears that Mussammat Harbans Kaur was a consenting party.

15. Mussammat Harbans Kaur was arrested on 15-1-1952, under Section 109, Cr. P. C. As she was notable to furnish security, she remained in policelock-up for four days. In the police lock-up Maruappellant was not with her. No complaint wasmade to the police by Mussammat Harbans Kaurduring the period that she was in the police lock-up. That being the position of matters, I findthat Mussammat Harbans Kaur was not compelledby Gurdas to go from village Bhorle to other places,but had accompanied Gurdas of her own free will.

16. In an earlier part of this order I have mentioned that the Court has found the evidence givenby Labh Singh, Amar Singh and Telu to be false and fabricated. That finding adversely affects the value of the evidence given by Mussammat Harbans Kaur.

17. Finding as I do, that Mussammat Harbans Kaur was not compelled by Gurdas to go from village Bhorle, I have no doubt that the conviction of Gurdas and Maru for the abduction of Mussammat Harbans Kaur under Section 335, Pcnal Code cannot be sustained. Mussammat Harbans Kaur is definite that she was not induced by deceitful means to go from Bhorle.

18. But it is said that Mussammat Harbans Kaur being below 18 years of age, the accused should be convicted under Section 363, Penal Code. Doctor Amrit Kaur, P. W. 3 gave evidence that Mussammat Harbans Kaur appeared to be 15 or 16 years of age. Budhu P. W. 2 gave evidence that Mussammat Harbans Kaur was born on 13-3-1936. Exhibit P.B. and Exhibit P.C. are copies of birth certificates in respect of Mussammat Swam Kaur and Mussammat Harbans Kaur. Mussammat Swam Kaur, who was older than Mussammat Harbans Kaur, died on 4-11-1933. Exhibit P.D. Is the death certificate in respect of the death of Mussammat Swam Kaur. That being so, it is plain that the birth certificate, Exhibit P. C., relates to the birth of Mussammat Harbans Kaur. Doctor Jai Dev C. W. 1 gave evidence that Mussammat Harbans Kaur was not more than 16 1/2 years of age.

'Kidnapping and abduction are two distinct offences though they are punishable under the same section. The result of there being only one charge framed in the alternative in respect of both offences is that it cannot be ascertained for which offence the appellant has been convicted, if indeed the jury applied their minds at all to the consideration of this question and did not take the view that in either event he was guilty under Section 366, and it need not bo decided which of the two different offences he had committed.'

'It is perfectly true that the prosecution may be in some doubt in certain cases whether the offence disclosed is that of kidnapping or that of abduction. If this is so, nothing is easier than to frame two charges and take the verdict of the jury upon them both.'

21. In 'kidnapping' consent of the person enticed is immaterial. In 'abduction' consent of the person removed, if freely and voluntarily given, condones it. In 'kidnapping' the intent of the offender is irrelevant, but in 'abduction' it is the all important factor. 'Kidnapping' from lawful guardianship is not a continuing offence for as soon as the minor is removed out of his or her guardianship the offence is completed, but the person is being abducted not only when he is first taken from any place but also when he is removed

from one place to another. That being the position of law, I think that Gurdas and Maru cannot be convicted under Section 363, Penal Code on the present charge. In the present case there is no charge of kidnapping.

22. Mr. D. N. Awasthy appearing for the State urges that there should be retrial in the event of the success of the appeals.

23. Gurdas and Maru were convicted on 25-11-1952. That being so, they have by this time suffered rigorous imprisonment for more than five months. As undertrials they remained in custody for about two weeks. In -- 'Wali Mahommed v. Emperor', AIR 1926 Lah 677 (1) (C), Wall Mohammad who had kidnapped Mst. Banti, aged Just over 14 years, was convicted under Section 363 of the Code and sentenced to suffer rigorous imprisonment for five years. On appeal Addison J. maintained the conviction of Wali Mohammad under Section 363, Penal Code but reduced the sentence imposed upon him to six mouths' rigorous imprisonment on the ground that Mussammat Banti was a consenting party. In the present case Gurdas and Maru have suffered rigorous imprisonment for over five months. Gurdas and Mussammat Harbans Kaur were neighbours and there is no doubt that Mussammat Harbans Kaur was a consenting party. In these circumstances, I do not think it proper to order a retrial.

24. In the result, I set aside the conviction ofGurdas and Maru appellants under Section 366, PenalCode and the sentence imposed upon them, Gurdasand Maru should be set at liberty forthwith.